Obscenity To Follow

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The First Amendment of the United States Constitution states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” This has caused a lot of tension for the content filtering that Tumblr has stated that it will start enforcing. So what allows that and is it constitutional or fair?

Going further to explain what Freedom of Speech is covered; let’s look at a further definition. Simply put, this Amendment gives us the right to express ourselves without fear of government regulation or interference, but it can regulate speech that may breach the peace and often times obscenity is placed into this category. Obscenity has been a hot button for many years over what it does or does not cover and it is not covered under the First Amendment. The Government defines obscenity as lewd, filthy, and disgusting words or pictures. However, indecent materials including depictions and words are covered under the First Amendment, but they are allowed in a more restricted sense.

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Defining what is or isn’t obscenity or indecent isn’t as black and white and there are two court cases that are big for determining the difference. The first being United States v. One Book Entitled Ulysses, which states that if a work is to be deemed obscene it must be decided on its entirety and not just its parts. This gives a wide berth for anything written, as it must be judged in its whole context. One chapter describing particularly graphic scenes cannot make the whole work obscene. The second case is Miller v. California, which gives a bit more definition. The webpage Legal Information Institute states “The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.” The Miller v. California case allows states to have more control in determining what obscene is and how it applies to a larger level.

Both of these cases were ruled on prior to 1997 and it was at this time more rulings started to surface to try to prevent specific types of content. Reno v. ACLU tried to implement laws to protect children in the new digital media being shared online, which tried to change the Telecommunications Act of 1996. The Supreme Court felt it was overly broad in its handing. In 1998 COPPA (Children’s Online Privacy Protection Act) was put into place and allowed laws to be put into place to protect minors from viewing of obscene images online. Later COPPA was found to also be overly broad in its ban of online adult transmissions of material and that it violated the Miller v. California test. As of 2009, no new legislature has been set forth to define obscenity any different.

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Unfortunately, that leaves it to State level to make the necessary decisions over what is or isn’t not considered obscene. These rulings are what has caused age restrictions to be put into place view the purchasing and viewing of adult content. And many times will allow a heavy-handed approach it what is considered able to fall under being prohibited. These same rulings are what allows websites, like Tumblr, to create Terms of Service agreements about how those images are handled. It is also the same rulings that allow the censoring of artists, photographers, and writers, people like Robert Mapplethorpe, David Wojnarowicz, or Gio Black Peter.  As the old saying goes, “one man’s trash is another man’s treasure.”

These same rulings are also used to limit topics of education in schools. Utah, Alabama, Louisiana, Oklahoma, Mississippi, South Carolina, Arizona and Texas are the states that allow their schools to censor or prohibit LGBTQ topics from being taught in what is called the “no promo homo” laws. This includes denying support groups such as the Gay and Straight alliance that helps students who are LGBTQ or supporters a means to feel safe, all the way down to Oklahoma that mandates that when the schools are teaching AIDS education that it includes that participating in homosexual events is the leading cause to contracting the AIDS virus. Arizona does not allow any curriculum that “promotes a homosexual lifestyle,” which the state is allowed to decide upon. When state levels of government are allowed to teach that homosexuality is considered obscene at a young age, it makes it much easier to deem images in art equally as obscene.

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The argument of Freedom of Speech ties a lot to age limit. In 1970, the Constitution was amended to change the voting age from 21 to 18. This gives the right of every American citizen to make decisions and vote on laws and those who enforce them once they reach the age of 18. This is also the age that is considered to be able to purchase adult content, whether online, in adult stores, or etc. So your right to expression is also allowed at that age and the Government should not be allowed to infringe on that right. As long as the participants of adult related content are consenting adults at least 18 years of age, do not hurt or put anyone in harm, then it should not be held to such strict standards. I left out violating any State or Federal laws, as this opens it back up to the States being able to deem something obscene.

Tumblr has used many reasons to explain their new stance on adult related content and how they will handle it. Any have focused on how there was an increase of child pornography on their sites that lead to their new heavier algorithms for banning the content. These algorithms are not perfect and many times are subject to controversy due to images the have flagged as to explicit. Many artistic images were tagged and removed. Many sites just vanished for the same reason. Transgender blogs that helped others by showing procedural images were caught up in these same heavy-handed approaches. It became a place where information could be shares in real time and show effects of treatments on people’s bodies so others had a reference point. Those sites that are important to many of the transgender community will more than likely disappear, as Tumblr’s ban goes into effect.

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It was also a venue for many LGBTQ artists to showcase their art, whether it be photography, painting, digital media, or however they expressed their talent. When their algorithms are searching for real life human genitalia, females showing nipples, or any content depicting sex acts, all the while encouraging users to actively flag and report anything they deem inappropriate, it is easy to see how this media is disappearing. They recently issued a response to the ban that said they would allow female nudity in aspects of breastfeeding, birth and health related situation, or mastectomy or gender confirmation pictures. They also clarified to say that nudity found in art would be permitted, but the extent of what is allowed is still left up to their decision and user interaction.

Your freedoms are always held in check by those who feel infringed upon or when States make changes to existing laws based on pressure. Sure sites like Tumblr and Facebook are allowed to make their own Terms of Service and we all agree to them blindly without reading fully what may be covered. Standards should be kept in place, but sweeping censoring based on broadly penned wording needs to change. Changing your standards based on pressure from outside sources should be resisted if no hard is being committed. Sadly, we won’t see that and many more sites may be going the way of Tumblr. Our voices may be the only thing that will shape futures of our online content.

**The views expressed in this post are my own and may not be held by any referenced party listed in this blog. **

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Everyone Else Is Doing It…

So December 17th will be Tumblr’s last day for porn. Those of you that may not know, Tumblr is a blogging platform that specializes in pictures, videos, gif, and smaller blocks of text. It is what would happen if Twitter and Facebook had a love child. It became the easy platform for small time pornography, as well as a means to share clips for other sites. Amateurs found it a perfect venue for their content and, if it happens, it will be sorely missed. With the approvals of SESTO (Stop Enabling Sex Traffickers Act) and FOSTA (Fight Online Sex Trafficking Act), many people who were using social media as a means of making a living may be forced into more unsafe areas.

Shortly after its birth in 2007, Tumblr quickly became a network for the NSFW community to post images and content without fear of being banned. If you were looking for quality clips, pics, gif, meme, and pirated videos, it was the go to place. If you were an amateur looking for e venue to showcase your material, Tumblr had an audience. If you were an aspiring porn star it was the perfect place to start building a follower base. Tumblr allowed you to surf the porn web anonymously and mostly safely. You could scroll through search list of almost any fetish or desire you may have and even create your own feed. From here you could repost items you found and build your own following. The limit was your imagination.

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As I mentioned in a previous post, Tumblr wasn’t against adult content and allowed it to be posted. The only caveat was that if you were a frequent poster of adult content you had to flag your blog as ADULT. Explicit content was frowned upon and often times did get deleted. Typically a post would be deleted if someone reported it or the algorithms they used found it. Their Toss expressed that explicit acts of sexuality would be removed, but in the past it was done with a light hand. This started to become more enforced this year when Verizon bought Tumblr.

Tumblr had led many tech companies in the fight to prevent telecoms from slowing the Internet for users who couldn’t pay for higher bandwidth speeds. Also allowing their users to be more determinate of what they posted created a fairly large target for them. They fighting voice for net neutrality started was quieted when their company merged with Yahoo. It wasn’t until they merged with Verizon that many posts started being silenced. Verizon is very much against net neutrality and very much backs the removal of adult content. Verizon also now owns AOL, this gives them a pretty large swatch of search engines and social media options to control flows for their benefit.

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This becomes important under this administration as we are seeing more and more measures put into place for censorship. “According to the National Center for Transgender Equality(NCTE), current laws already grant prosecutors ample powers to effectively bust sex traffickers and to investigate businesses that engage in trafficking. But the law could drastically expand the definition of the offense of “promoting” or facilitating trafficking to include many commercial websites disseminating information for sex workers, even educational guidance, opening them up to lawsuits or other pressure to shut down,” according to The Nation. This could give SESTO and FOSTA the ability to target sites that are offering education services under the guise of helping sex workers or traffickers.

The recent change to Tumblr is also affected other platforms, like Facebook. Facebook as recently changed its content-moderation protocols to crackdown on any sexually suggestive posts. Their policies have changed to include language for discussing sexual positions to posting erotic art. The previous iterations of the policies did not clearly make distinction between sexual exploitation and solicitation. So calling your ex a slut and showing pics they sent you would clearly fall under exploitation, while being in a group and saying that you are going to be at a local bar looking for fun, if interested wear a shirt with a unicorn could be under solicitation. Now, both scenarios are clearly defined under their new policy. This has seen an increase in posts being flagged and groups being deleted. I personally have had a friend been warned and posts removed for content that Facebook said used sexual slang.

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According to an article posted on Out (out.com) “In October, the Electronic Frontier Foundation, a nonprofit that works to defend free speech and user privacy, reported that in recent years “policy restrictions on ‘adult’ content have an outsized impact on LGBTQ+ and other marginalized communities.” Many LGBTQ websites and social platforms have felt the backlash from this, seeing YouTube channels being suspended or Facebook pages temporarily banned. These are places that offered safe information about sex to many LGBTQ youth. This in turn can lead to a heightened sense of not belonging and turning to other less safe means of learning about sex and sexual activities. Many of these platforms provided sexual education for the LGBTQ youth and showed that sex could be intimate and soft instead of being catered to the male gaze and phallic centric that a lot of porn seems to be shot in.

A couple months ago, Facebook was shown to have been blocking many LGBTQ ads based on its new advertising policy. Facebook claims this is a small error but it does show failures in the programming of algorithms they use to monitor their traffic. They truth of this is hard to imagine since Facebook, itself, isn’t know to be supportive of the LGBTQ community. Many are still feeling the backlash of the “real name” policy. A policy that did not allow transgender people to change their name as it wasn’t seen a their “REAL NAME.”

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Censorship like this isn’t the only limit. If you are in support for sex worker reform and post about any of articles that are about it, many social media platform see the words “sex worker” and oftentimes flag the post or suspend your account without explanation. There is fear that many of the algorithms used for scanning will not be able to differentiate between diagrams for condom usage, pelvic exams, or porn. This could lead to large problems with sexual educations sites that are legitimately hosted by organizations. Many of the early obscenity laws of America were centered on the teaching of sexual education and contraception.

Eric Leue, executive director of the Free Speech Coalition stated,  “Many people in straight, heteronormative communities don’t understand what the big deal is, because their lives and cultures are represented everywhere,” Leue said. “For those in queer, or niche, or fetish communities, Tumblr was one of the few accessible spaces to build communities and share content.” He also feels that large tech companies need to understand the difference between using algorithms for flagging content and outright banning content versus nuances of media and human regulation. Removing these items from apps stores and online media may not seem huge to the heteronormative segments of the population but it has a huge effect on the LGBTQ youth.

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It has not been thought of how this may affect informative educational blogs for the transgender community. Many transgender people have used the platforms like Tumblr and Instagram for showing their lives through transitional images and giving a voice to those who are struggling to find acceptance. These same sites will very likely be the ones that are flagged and banned because of images or text used. With the current president and administration pushing to change laws for LGBTQ it isn’t hard to see that many of these sites will land on the side of safety and remove this content

Censorship is alive and well in America. It is being used as a means of persecution of marginalized people. We have see platforms target images and posts based on to strict algorithm and heavy handed banning when, in fact, the content may not specifically fit the ToS of the platform. This same censorship seems to be targeting LGBTQ people in ways we didn’t think would happen, artwork is being flagged, educational sites are being removed, and our posts are being removed because someone or something things we are using suggestive terms that may relate to exploitation or solicitation. Its time we became more aware of the control these people exert without our knowledge. If not, many aspects of our culture could be removed before we even realize it is gone.